(Court of Appeal – February 6th, 2015)

Legalpedia Electronic Citation : LER[2015]CA/L/266/2003

Areas of Law
PROPERTY LAW, APPEAL, ACTION, JUDGMENT AND ORDER

Summary of Facts:

The 1st Respondent’s late husband’s property described as Plot 1303A Akin Adesola Street Victoria Island Lagos was sold by the 2nd Respondent to the Appellant during the pendency of two separate suits in which her interest in the property was being disputed . The 2nd Respondent claimed that the 1st Respondent’s husband sold the property to him during his life time. The 2nd Respondent and the Appellant thereafter in suit LD/2220/99, obtained consent judgment vesting the property in question on the Appellant and in the pretext that the 2nd Respondent was in possession of the property, a writ of possession was issued against the 2nd Respondent for delivery up of possession of the premises to the Appellant. Upon execution of the said judgment, the 1st, 4th and 5th Respondents who were in actual possession of the property, became aware of the consent judgment and subsequently, the 4th Respondent filed a motion ex parte seeking for an order for joinder of Primlaks Financier Consultants Ltd, as an interested party in the suit, an interim order staying execution of the judgment in suit LD/2220/99 pending the hearing of the Motion on Notice and an interim order reinstating the occupants of the premises into possession. The trial court granted the motion ex parte and the 1st, 3rd, and 4th Respondents filed a fresh suit LD/3652/99 claiming orders for setting aside the sale of the premises, the consent judgment and the Writ of possession. They also claimed damages for the damage caused to the Plaintiff and her goods and chattels as a result of the attempted execution of the writ of possession. The trial Court, Rhodes-Vivour J made an order that “no party shall levy execution on the premises in furtherance of suit No LD/2220/99 pending the hearing and determination of this case which is going on from day to day”. Dissatisfied with the order, the Appellant appealed to this court.

Held:

Appeal Struck Out

Issues for Determination:

• Whether the lower court was right when it directed that parties should take no steps to execute the judgment sought to be set aside.
• Whether it is academic and an abuse of court process for the appellant to appeal against an order of the lower court which has been disobeyed by the appellant

Rationes:

PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION
“A preliminary objection does not need a ground of appeal or a respondent’s notice to support it. The purpose of a preliminary objection is to contend that the appeal is defective or incompetent and if sustained the appeal would no longer be heard. A successful preliminary objection terminates the hearing of the appeal. The fundamental requirement is that the preliminary objection must be filed and served on the Appellant three days before the hearing of the appeal thereby removing the element of surprise and giving the appellant enough time to respond. Order 10 Court of Appeal Rules 2011; Contract Resource Nigeria Ltd & Anor v. UBA Plc (2011) LPELR-8137(SC).” PER C. E. IYIZOBA, JCA

ACADEMIC ISSUE– WHEN DOES AN ACTION BECOME HYPOTHETICAL OR ACADEMIC
“In the case of Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489@ 546 – 547 D-G the Supreme Court held that:
“An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue in an appeal has become defunct it does not require to be answered or controvert about and leads to making of bare legal postulations which the court should not indulge in.” PER C. E. IYIZOBA, JCA

OBEDIENCE TO AN ORDER OF COURT – AN ORDER OF COURT MUST BE OBEYED
“An order of a Court whether right or wrong must be obeyed unless set aside”. PER C. E. IYIZOBA, JCA

CONTEMPT OF COURT – WHAT AMOUNTS TO CONTEMPT OF COURT
“It is contempt of court to refuse to do an act required by a judgment or order of court within the time specified therein or to disobey a judgment or an order restraining a person from doing a specified act. The dignity and honour of the court cannot be maintained if its orders are treated disdainfully and scornfully without due respect, see Oko-Osi v Akindele (2013) LPELR-20353 (CA); Abbass v Solomon (2001) 15 NWLR (Pt 735) 144”. PER A. O. OBASEKI-ADEJUMO, JCA

Statute Referred to:
Court of Appeal Rules 2011